The opinion of the court was delivered by: LASKER
Defendants, Trustees of the Amalgamated Cotton Garment and Allied Industries Fund ("the Fund" or "the Plan"), move for summary judgment on their counterclaim that because the plaintiff-employer failed to request arbitration within the time limit set by the Act, see 29 U.S.C. § 1401(a)(1), it is subject to withdrawal liability under the Multi-Employer Pension Plan Amendments Act ("MPPAA" or "the Act"), 29 U.S.C. § 1381 et seq. Plaintiff moves, on the grounds that this court is without jurisdiction to order payment of the liability until the conclusion of arbitration, see 29 U.S.C. § 1401(b)(1) and (2), for dismissal of defendant's counterclaim for collection of the withdrawal liability.
The Act requires a plan sponsor, as soon as practicable after an employer's withdrawal, to notify the employer of the amount of its liability and schedule for payments, and to demand payment in accordance with the schedule. 29 U.S.C. § 1399(b)(1). If the employer disputes the fact or amount of the liability, it may, within 90 days, ask the fund to review its determination. 29 U.S.C. § 1399(b)(2)(A).
The plan sponsor must respond to the employer's request for review:
"(B) After a reasonable review of the matter raised, the plan sponsor shall notify the employer of --
(i) the plan sponsor's decision,
(ii) the basis for the decision, and
(iii) the reason for any change in the determination of the employer's liability or schedule of liability payments."
29 U.S.C. § 1399(b)(2)(B).
The Act mandates that disputes concerning determinations of withdrawal liability be resolved through arbitration:
"(1) Any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration. Either party may initiate the arbitration proceeding within a 60-day period after the earlier of --
(A) the date of notification to the employer under section 1399(b)(2)(B) of this title, or
(B) 120 days after the date of the employer's request under section 1399(b)(2)(A) of this title.
The parties may jointly initiate arbitration within the 180-day period after the date of the plan sponsor's demand under ...